Madras High Court

Dhanapalraj ... Revision vs Sivanesaselvan on 23 November, 2023

                                                                            Crl.R.C.(MD) No.198 of 2019


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            Reserved on                  29.09.2023
                                          Pronounced on                  23.11.2023

                                                            CORAM

                                    THE HONOURABLE MR. JUSTICE P.DHANABAL

                                                  CRL.RC(MD)No.198 of 2019
                                                            and
                                                  Crl.MP(MD)No.6984 of 2019


                     Dhanapalraj                                                  ...        Revision
                     Petitioner

                                                                Versus

                     Sivanesaselvan                                         ... Respondent

                     Prayer : The Criminal Revision Petition is filed under Section 397 read
                     with 401 of Code of Criminal Procedure, to call for the records pertaining to
                     the order of conviction in C.A.No.73 of 2018, dated 31.01.2019 passed by
                     the Learned III Additional District & Sessions Judge, Thanjavur at
                     Pattukottai in confirming the order passed by the Learned Judicial
                     Magistrate at Pattukottai in S.T.C.No.53 of 2014 on 04.07.2018 and set
                     aside the same.


                                  For Revision Petitioner   :    Mr.K.Mahendran



                     1/20

https://www.mhc.tn.gov.in/judis
                                                                         Crl.R.C.(MD) No.198 of 2019

                                    For Respondent     :   Mr.B.S.Manjunath


                                                        ORDER

This Criminal Revision Petition has been filed by the Petitioner

as against the judgment passed in C.A.No.73 of 2018, dated 31.01.2019

passed by the learned III Additional District & Sessions Judge, Thanjavur at

Pattukottai by confirming the judgment and conviction passed by the

Learned Judicial Magistrate at Pattukottai in S.T.C.No.53 of 2014 on

04.07.2018.

2. Wherein the Trial Court has convicted the Accused and

sentenced him to undergo one year of Simple Imprisonment and to pay a

compensation of Rs.7,00,000/- under Section 138 of Negotiable Instrument

Act in default to undergo a further period of two months of Simple

Imprisonment. As against the judgment and conviction passed by the Trial

Court, the Accused has preferred an Appeal in C.A.No.73 of 2018 on the

file of the learned III Additional District & Sessions Judge, Thanjavur at

Pattukottai and same was also dismissed by confirming the judgment of the

Trial Court. As against the judgment of the Appellate Court, the present

Criminal Revision Petition has been filed.

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3. The case of the complainant before the Trial Court is that on

07.01.2012, the Accused borrowed a sum of Rs.7,00,000/- and in order to

settle the above said amount, the Accused issued a cheque dated 02.02.2012

for a sum of Rs.5,00,000/- and another cheque dated 08.02.2012 for a sum

of Rs.2,00,000/-. The said two cheques were presented for collection by the

complainant and the same were returned as insufficient funds. Thereafter,

the complainant issued notice to the Accused on 13.03.2012 and the same

was returned as unclaimed on 24.03.2012. Thereby, the complainant has

filed cheque complaint to the learned Judicial Magistrate at Pattukottai and

the same was taken cognizance and the summons was issued on the

Accused. On appearance of the Accused the records relied on by the

complainant were furnished to him under Section 207 of Code of Criminal

Procedure. After hearing both sides and perusing the records, the Trial

Court has explained the substance of acquisition and the Accused pleaded

not guilty.

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4. On the side of complainant, the complainant was examined

himself as P.W.1 and Ex.P.1 to Ex.P.8 were marked. After completion of

Complainant side evidence, the Accused was examined under Section

313(1)(b) of Code of Criminal Procedure with regard to the incriminating

circumstances found against him and the same were denied as false. On the

side of the Accused, the Manager, City Union Bank, Pattukottai Branch was

examined as D.W.1 and bank statement was marked as Ex.R.1.

5. After evaluating the oral and document evidences adduced

on either sides, the Trial Court has convicted the Accused for the offences

under Section 138 of Negotiable Instrument Act and sentenced him to

undergo one year of Simple Imprisonment and to pay a compensation of Rs.

7,00,000/- to the complainant and in default to undergo a further period of

two months of Simple Imprisonment. As against the judgment and

conviction, the Accused has preferred an appeal before the Principal District

and Sessions Judge and the said appeal was made over to learned III

Additional District and Sessions Judge, Thanjavur at Pattukottai in C.A.No.

73 of 2018. The Appellate Court also after elaborate discussions dismissed

the appeal by confirming the judgment and conviction passed by the Trial

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Court. As against the judgment of the Appellate Court, the present Criminal

Revision Petition has been filed by the Accused/Revision Petitioner on the

following grounds :

(a). The judgment of Lower Appellate Court is against law, weight of

evidence and probability of the case. The Lower Appellate Court

erroneously presumed that the Petitioner has borrowed the amount from the

complainant and issued cheques in favour of the complainant.

(b). The Courts below erroneously presumed that the notice sent by

the complainant returned with an endorsement “door locked” and further it

was held that the Petitioner appeared before the Lower Court only on receipt

of the notice sent by the Lower Court and presumed to come to the

conclusion that the notice was served, the said observation is not at all

correct in the eye of law. Since, if really the endorsement correct, then the

complainant ought to have examined the postman to establish the fact that

the door was locked or not.

(c). Both the Courts failed to note that the respondent has admitted in

his cross examination that his income during the year 2013 is only Rs.1 lakh

to 1 ½ lakhs. Further he admitted that Rs.7 lakhs is very high amount for

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him. Therefore, the Respondent did not have any sources of income to lend

a sum of Rs.7 lakhs to the Petitioner and ought to have presumed that the

Respondent did not have sufficient amount to part with the Petitioner.

(d). Both the Courts below failed to note that the Petitioner examined

the Bank Manager as defence witness and established that the serial number

mentioned in the cheque book have not used during the relevant period of

time and there was no transaction of the other cheques contained in the

cheque book.

(e). The Lower Appellate Court as well as the Trial Court has failed to

appreciate the evidence given by D.W.1 that the cheques have material

alteration.

(f). Both the Courts failed to appreciate the evidence of P.W.1 that the

Petitioner hereiin issued the cheques for security purpose only.

(g). Both the Courts wrongly concluded that the Petitioner herein

issued blank cheque so there is no material alteration.

(h). Both the Courts failed to considered the point that the loan

availed by the Petitioner herein from the complainant's father in law only

and not from the Respondent herein. The Petitioner herein has given his

cheques as security for the loan obtained from the father in law of the

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complainant. But later the said loan was settled by the Petitioner. However,

the Petitioner did not get back the cheques, because he died. After that the

Respondent filed a complaint before the Court below.

(i). The Courts below failed to consider the fact that the disputed

cheque was issued by a firm but the complaint has not been filed against the

firm. Similarly, no statutory notice has been issued to the firm. Hence, the

complaint itself is defective.

(j). The complainant has no sufficient means to lend such a hefty

amount. In the evidence of P.W.1 during cross it has been admitted such a

lended amount is a huge amount for him, his bank account during that

period never had such a balance. It is also admitted by him that the lending

of amount has not been disclosed in his income tax return and there is no

record in proof of such lending. These are all the circumstances sufficient to

show to rebut the presumption in favour of the complainant.

(k). The theory of Section 20 of Negotiable Instrument Act that the

holder of the instrument entitled to fill the same is not applicable to the facts

of the case since it is a definite case of the complainant a cheque was filed

in every aspect and then alone handed over to him.

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6. The learned counsel appearing for the Revision Petitioner

would contend that the complainant has filed a cheque complaint as against

the Petitioner alleging that he borrowed loan from the complainant and in

order to settle the above said loan, he issued two cheques. One cheque is for

a sum of Rs.5,00,000/- and another cheque is for a sum of Rs.2,00,000/- and

the same were presented for collection but the said cheques were returned as

insufficient funds and then the complainant issued notice and the same was

managed to return by the Accused and thereby, he filed the complaint.

6.1. In fact, the Revision Petitioner had not borrowed any

money from the complainant and he did not receive the notice issued by the

complainant. Originally, the Accused had money transaction with the father

in law of the complainant and for security purposes, he gave the cheques to

him. After the demise of father in law of the complainant, they misused the

above said cheques and filed this complaint. Further, the complainant has no

financial capacity to pay such a huge amount to the Accused and the same

was also admitted by the complainant at the time of his cross examination.

Further, the cheque was issued in the name of Company and the Company

was not added as party to this case. The Trial Court failed to consider the

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material alteration made in the cheques. The Trial Court has failed to

consider the above such aspects and the Appellate Court also erroneously

came to a conclusion that the financial capacity of the complainant will not

affect the case since the Accused admitted his signature. Further, the Courts

below failed to consider that the notice was not served to the Accused and

thereby, no cause of action would arise to the complainant.

6.2. Even according to the case of the complainant, the Accused

borrowed a sum of Rs.7,00,000/-. If so, there is no evidence with regard to

the interest either in the complaint or in the notice, the complainant has not

stated the place where the Accused borrowed the amount and how the

amount was paid to the Accused. Thereby, the complainant failed to prove

his case beyond any reasonable doubt. Per contra, the Accused examined the

Bank Manager and there was no any transaction after the year 2008 but the

cheque was issued in the year 2012. There is no chance to issue a cheque

after a long period but the Trial Court failed to consider the same.

Therefore, the Courts below have committed the grave error and

erroneously convicted the Accused. Hence, the judgment and conviction of

the Trial Court as well as the Appellate Court are liable to be set aside by

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allowing this Criminal Revision Petition.

7. The learned counsel appearing for the Respondent would

contend that the Accused has not denied the signature found in the said

cheques and further the complainant issued notice and the same was

managed to be returned by the Accused. Once the Accused admitted his

signature, it is for him to prove that the cheque was not issued for the

legally enforceable debt. But in order to prove his case, he failed to enter

into the witness box and merely examined the Bank Manager and the same

is not sufficient to prove his case. The Trial Court took consideration of all

these aspects and elaborately discussed about the presumption under

Section 139 of Negotiable Instrument Act and the provision under Section

141 of Negotiable Instrument Act and fairly came to a conclusion that the

prosecution has proved the case against the Accused and the Accused was

convicted under Section 138 of Negotiable Instrument Act. The Appellate

Court also passed the reasoned judgment and thereby, the present Revision

Petition is liable to be dismissed.

8. This Court has heard the both sides and perused the records.

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Upon hearing the both sides and perusing the records, the judgments of the

courts below and the grounds, the point for consideration in this petition is

Whether the judgment passed in C.A.No.73 of 2018 on the file of III

Additional District and Sessions Judge, Thanjavur at Pattukottai is

sustainable in law and on facts.

POINTS :

9. The case of the complainant is that the Accused known to

him and thereby, he obtained loan from the complainant on 07.01.2012 and

agreed to repay the amount within one month and the Accused issued

cheques dated 02.02.2012 drawn on City Union Bank, Pattukottai Branch

for a sum of Rs.5,00,000/- and another cheque dated 08.02.2012 on the

same branch for a sum of Rs.2,00,000/-. When the cheques were posted for

collection on 13.02.2012, the same were returned as insufficient funds on

16.02.2012. Thereafter, the complainant issued notice to the Accused on

13.03.2012 and the same was returned on 24.03.2012 as door locked and

unclaimed. Thereby, the complainant has filed the complaint.

10. The contention of the Accused is that he had financial

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dealings with the father in law of the complainant and thereby, his cheques

were under custody of father in law of the complainant and those cheques

were not issued for legally enforceable debt and the same were issued only

for security purposes. In the mean time, the father-in-law of the complainant

died, after demise of father-in-law of the complainant, he misused the

cheques and filed this complaint. Therefore, the Accused admitted the

signature found in the cheques. Once the Accused admitted the signature

found in the cheques, it is his duty to prove the case for what purpose the

cheques were issued. In order to prove the above said version of the

Accused, he did not enter into the witness box and he examined the Bank

Manager and marked Ex.R.1. The Bank Manager as D.W.1 has deposed

about the account details of the Accused.

11. On careful perusal of the above said accounts and evidence,

it revealed that the serial number mentioned in the cheque book have not

been used during the relevant period of time and there was no transactions

of other cheques contained in the cheque book. Now, the point is that once

the Accused admitted his signature found in the cheque, it is a presumption

that it is in favour of the complainant under Section 139 of Negotiable

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Instrument Act and the Accused has to rebut the same through sufficient

evidence.

12. In this context, the learned counsel appearing for the

complainant would contend that the Accused failed to enter into the witness

box and thereby, adverse inference can be drawn against him. It is true in

this case, the Accused has not entered into witness box to put forth his

contention. However, the mere non examination of Accused alone is not

sufficient to draw adverse inference and other circumstances also have to be

looked into. It is well settled in law that in every cases the Accused need not

be entered into the witness box and the case of the complainant can be

demolished through cross examination and other available evidence on the

complainant side. In the above said backdrop, the Court has to see the

evidence of P.W.1.

13. At the time of his cross examination, the P.W.1 has

admitted that he has no income to lend such a huge amount of sum of Rs.

7,00,000/- and according to him, the amount of sum of Rs.7,00,000/- is a

very huge amount. While so, it is duty of the complainant to prove his

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financial capacity to lend money to have a huge amount of sum of Rs.

7,00,000/-. In this context, the P.W.1 admitted in his cross examination that

in the year 2013 his income was only Rs.1,00,000/- to Rs.1,50,000/- and

prior to that his income was only around Rs.1,00,000/-. While so, doubt

would arise as to how the complainant had lend such a huge amount to the

Accused, which has to be proved by the complainant. It is true that the

presumption of Section 139 of Negotiable Instrument Act is in favour of the

complainant. However, to invoke the presumption under Section 139 of

Negotiable Instrument Act, the complainant has to prove the foundational

facts with regard to the amount lending to the Accused and issuance of

cheque.

14. In this case, the lending of amount to the Accused itself

creates serious doubts and the complainant himself admitted that he has no

means to pay the above said amount. It is well settled law that the Hon'ble

Supreme Court in catena of judgments categorically held that the

presumption under Section 139 of Negotiable Instrument Act is rebuttable

presumption and through defence side evidence it can be rebutted and the

complainant has to prove the financial capacity. But in this case, the

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complainant before the Trial Court failed to prove the financial capacity of

the complainant. Therefore, the complainant failed to prove the case beyond

any reasonable doubt. The P.W.1 also admitted that the lending of money to

the Accused has not been disclosed in his income tax return and there is no

record to prove the above said lending of money to the Accused. Further,

the complaint failed to explain about the alterations made in the cheque

either in the complaint or in the evidence. Therefore, the reasonable doubt

would arise about the case of the complainant and the Accused is entitled to

the benefit of doubts. As far as the contention raised by the Accused that he

has not received the notice and the company was also not impleaded as

party are concerned, already the Court below has came to a conclusion that

once the notice sent to the address mentioned in the complaint and the same

was returned as refused, it is a presumption that it is deemed to be served to

the Accused and the non impleading of the company as a party is concerned,

according to Section 141 of Negotiable Instrument Act, it not covers within

its ambit, the proprietary concern. The proprietary concern is not a juristic

person so as to attract the concept of vicarious liability. Therefore, Section

141 of NI Act have no applicability in a case involving the offence

committed by a proprietary concern. The Courts below have also elaborately

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discussed about the Section 141 of Negotiable Instrument Act and correctly

came to a conclusion that the company is represented through its proprietor

and the Accused is the proprietor and he himself added as a party and

thereby, it will not affect the case of the complainant.

15. Therefore, this Court of the opinion that the complainant

failed to prove the case beyond reasonable doubt. In this context, the Trial

Court has failed to discuss about the financial capacity of the complainant.

Further, the admissions made by the complainant have not been taken into

account by the Trial Court and further, the Appellate Court came to a

conclusion that the amount was issued for legally enforceable debt and the

contention of the Accused that the complainant has no financial capacity to

lend a amount cannot be accepted. The Courts below have committed error

by not looking the financial capacity of the complainant. Though the

Accused has not entered into the witness box to prove that the cheques were

issued to the complainant's father in law for security purpose. The

complainant himself admitted that he has no income to lend a above said

money. While so, he has to explain that how the amount was given and why

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the two cheques were given by the Accused and what about the interest for

the amount lend to the Accused. Moreover, according to the defence, the

Accused has not operated the account from the year 2008 and as per the

evidence of D.W.1, the cheque book was not issued during the relevant

period of time and there was no transaction on the other cheques contained

in the cheque book. By these evidence, the defence has probablised his case

that there is no legally enforceable debt and the above said aspects have not

been considered by the Trial Court as well as the Appellate Court.

16. The learned counsel appearing for the Revision Petitioner

relied on the judgment of Hon'ble Supreme Court made in K.Subramani Vs.

K.Damodara Naidu case reported in (2015) 1 SCC 99 wherein the Hon'ble

Supreme Court held as follows :

“8. A three-Judge Bench of this Court in

the decision in Rangappa case laid down that the

presumption mandated by Section 139 of the NI

Act includes a presumption that there exists a

legally enforceable debt or liability and that is a

rebuttable presumption and it is open to the

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accused to raise a defence wherein the existence

of a legally enforceable deb or liability can be

contested. Relying on the said ratio the High

Court answered the two legal issues raised by it

in the impugned judgment. Though the criminal

appeals were preferred against the judgment of

acquittal passed in all the cases arising under

Section 138 of the NI Act, the factual matrix and

the evidence adduced were different. The High

Court after answering the two legal issues did not

consider the merits of each case individually and

has simply remanded the matter to the trial court

for fresh consideration.”

On careful perusal of the above judgment, it is clear that the presumption

mandated by Section 139 of the NI Act includes a presumption that there

exists a legally enforceable debt or liability and that is a rebuttable

presumption and it is open to the Accused to raise a defence wherein the

existence of a legally enforceable debt or liability can be contested. In this

case on hand also, the Accused has probable his defence through cross

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examination as well as the examination of D.W.1. Therefore, the above said

case is squarely applicable to the present facts of the case.